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EVIDENCE - Admissions - Methods of proof - Similar fact evidence - Inferences

Wednesday, November 18, 2020 @ 6:24 AM  

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Appeal by Lo from his conviction, by jury, on three counts of sexual assault. The appellant, a psychologist, engaged in relaxation therapy as part of the treatment he provided. Three of his patients claimed the appellant’s massages progressed from their shoulders to rubbing and caressing their genitals. Based on an agreed statement of facts, the appellant pleaded guilty to one count of disgraceful conduct and no contest to a count of sexual abuse of a patient in disciplinary proceedings. At trial, the appellant denied touching any of the complainants under their clothing or in their genital area. He denied instructing his lawyer to admit the facts as true in his disciplinary proceedings. Two of the complainants were interviewed by the same disciplinary investigator. The same civil counsel represented each complainant in their individual civil suits against the appellant. The trial judge declined to include an adverse inference instruction about the failure to call the investigator as a witness or to instruct the jury about the duty of disclosure imposed on civil counsel.

HELD: Appeal dismissed. The trial judge did not err in admitting the evidence of the disciplinary proceedings against the appellant. What occurred at the disciplinary hearing was properly characterized as an admission when tendered at the appellant’s criminal trial. The trial judge was entitled to reject the appellant’s evidence that he had not given his counsel authority to make the admissions. He did not err in permitting across counts use of the evidence of each complainant. He properly evaluated the evidence of potential collusion among the complainants. The trial judge properly instructed the jury on the appropriate use of evidence of possible collusion. The absence of an adverse inference instruction did not leave the jury unschooled about the impact of the interaction of the complainants with investigators and the prospect of contamination of their evidence. The trial judge was correct not to include an instruction about the duty of disclosure of civil counsel.

R. v. Lo, [2020] O.J. No. 4302, Ontario Court of Appeal, D. Watt, C.W. Hourigan and A.L. Harvison Young JJ.A., October 8, 2020. Digest No. TLD-November162020006